Trading On Mobility

On a Wednesday evening in June 2016, the minister of international trade, Chrystia Freeland, appeared at the University of Toronto as part of the Liberal government’s public consultations on the Trans-Pacific Partnership (TPP), which Canada and 11 partner countries had signed in February of that year. The largest and most geographically expansive trade agreement the country has ever signed on to has yet to be ratified.

Hundreds attended the two-hour-plus meeting to pose questions to Minister Freeland on issues of Indigenous rights, net neutrality, copyright terms, drug affordability, environmental policies, food sovereignty, investor disputes, and temporary labour. The overwhelming majority of those who asked questions were opposed to the TPP, wary of the decision-making power that it could put in the hands of private companies. One attendee remarked, “In these consultations, you’re made to feel like a serf pleading to the king.”

Their concerns, particularly around labour and migration, are not without precedent. Trade pacts like the North American Free Trade Agreement (NAFTA) are conspicuous for their support of corporate discretion in relocating production facilities, which often leaves workers in the manufacturing sector looking for new employment, usually in jobs with lower wages and less security. There is a familiar pattern in which corporations threaten to close or move their facilities during negotiations with unions, or to shut down unionization efforts altogether. We can recognize a similar scheme when foreign companies win contracts to supply services in Canada, and then shuttle highly skilled but temporary workers across borders to carry out this work.

More indirectly, the effects of trade agreements on labour are visible when imported goods depress economies of the Majority world, pushing workers to seek temporary and precarious employment in wealthier countries. As a review of the TPP by the American Federation of Labor and Congress of Industrial Organization argues: “Migrant workers are often caught in this vicious cycle, displaced from agricultural or other domestic industries by cheap, often subsidized imports, and recruited into exploitative working conditions in other countries.”

But the category of “migrant workers” of course includes both low-skilled and highly skilled workers (business visitors, intra-corporate transferees, investors, and professionals and technicians). Through trade agreements, companies hire workers considered “highly skilled,” like engineers and scientists coming from the U.S. and northern Europe, who are expedited through migration procedures. Those deemed “low-skilled,” like farm workers coming from the Philippines and Mexico, must apply through non-trade agreement streams, where they are subjected to multiple approval processes to fill jobs that fit the three Ds: dirty, dangerous, and difficult.

While it remains to be seen what the TPP’s long-term effects could be on migratory labour, there is cause for concern. The TPP will extend employers’ already significant role in migration, including new discretion over entry qualifications, hiring caps, and wage rates. What’s more, while the Temporary Foreign Worker Program has mechanisms to discipline employers for abuses, there are no such regulations in place to ensure that these employers will not simply hire through trade agreement streams, which have less governmental oversight.

International trade and corporate influence affect not only the transnational mobility of highly skilled, high-wage workers, but also create conditions that force people to seek out low-skill work. While alarming stories of labour migration have long revealed the high stakes for workers, far less understood is the role of private businesses in determining workers’ access to Canada and their mobility rights.

The current system

Canada’s migration policies segment workers based on skill levels, as determined through the National Occupational Classification (NOC) matrix, a sorting tool developed over 20 years ago, in part through consultation with business. The NOC matrix is used to justify the differential treatment of migrants, and it results in vastly different experiences of approval processes and access to stable and safe work.

This segmentation begins with Employment and Social Development Canada initiating a review called a Labour Market Impact Assessment (LMIA), which determines whether an international hire will fill a labour shortage that can’t be filled by Canadian workers. The purpose of an LMIA is ostensibly to ensure that all qualified Canadians are considered for work before foreign workers are hired. In the absence of such an assessment, employers are able to bypass the qualified and available domestic labour pool. But the TPP prohibits LMIAs from determining whether workers brought in through the agreement will fill labour shortages.

Where employers are exempt from this assessment, company representatives are often the only contact workers will have with the Canadian migration system before travelling to Canada; the paperwork and costs borne by the worker are minimal, streamlined through the “Employer Portal” – a tool developed specifically to log and expedite the issuance of job offers for LMIA-exempt positions.

According to Citizenship and Immigration Canada, LMIAs supposedly demonstrate “that there is a need for a foreign worker to fill the job” and “that no Canadian worker is available to do the job.” In practice, however, LMIAs are used to determine which positions can be filled by racialized workers coming from the Global South/Majority world, where assessment fees are routinely passed from the employer to the worker.

The segmentation of migrants continues where “low-skilled” workers receive “tied” work permits that lock them to a single employer, while those whose work is LMIA-exempt, like those coming through trade agreements, are granted “open” work permits that leave the employer unspecified. This differentiation of migrants persists when it comes to family reunification and access to permanent status, both of which are only available to migrants holding open permits.

The mobility of those coming through trade agreements privileges those termed by anthropologist Aihwa Ong as “ideal” migrants, whose bounty of skills is held up as a benchmark and used to justify an employer’s poor treatment of “low-skilled” migrant workers, as well as the federal government’s failure to ensure the latter any sort of permanent status.

LMIAs and tied work permits frame migrants through an only-as-needed, economically necessary model. Migrant workers in this category are considered to be filling a labour shortage, which occurs when the demand for workers is higher than the pool of workers willing to do the labour at the wage and in the conditions offered. But as research by the Migration Policy Institute reveals, “Economists disagree as to whether ‘labor shortages’ exist at all: if particular skills are scarce, employers will raise wages and more workers will come forward or seek training to join the occupation.” Employers won’t raise wages or improve conditions when they can import labour.

“Our opposition to the TPP must be about simultaneously how its provisions will force more people in the South to leave their homes for decent work and how current federal and provincial laws deny permanent status and protections,” says Syed Hussan, from the Migrant Workers Alliance for Change.

Parallel systems

With the introduction of the NOC matrix in the 1990s, there was a definitive shift away from admission based on personal suitability and toward labour market qualifications that prioritized quantifiable skills, like formal education, professional training, and occupational experience. This new emphasis gave increasing responsibility to the business sector to help define the scale of skills. This is the framework upon which the current migration system is built.

In her study of Guatemalan migrants working in Canada, geographer Giselle Valarezo explains the nature of this corporate influence: “Businesses lobby for efficient amendments that intensively privatize selection and admission procedures, sanctioning the ability of employers to act as agents of the public interest and allowing them to oversee and monitor the documented migration of foreign workers.”

The TPP is positioned to intensify this existing authority, giving companies expanded rights to hire high-skilled workers, and to decide how much beyond minimum wage some entry streams should be paid.

As Hadrian Mertins-Kirkwood, a researcher with the Canadian Centre for Policy Alternatives, cautions, “The TPP does not give new rights to workers to move across borders. Instead, it gives new rights to employers to hire internationally or to move workers across borders.” And what this amounts to is a kind of “parallel immigration system” carried out in the interest of private business.

Anarchist anthropologist David Graeber argues that free trade is about “the creation of global administrative structures mainly aimed at ensuring the extraction of profits for investors.” This objective is perhaps most glaring in the TPP’s investor-state dispute settlement measures.

The deal’s provisions on temporary labour allow states to sue one another in private arbitration. This requires a state, acting on behalf of temporary workers (or, more likely, their hiring company), to demonstrate a “pattern of practice” showing that the other state used governmental regulation to interfere with the trade agreement.

Alarmingly, this is actually stricter than dispute settlements throughout the rest of the TPP where, borrowing from NAFTA, a private company can sue the Canadian government directly. Originally included in NAFTA as a bulwark against corruption in Mexico’s legal system, it has resulted in making Canada the most sued country under NAFTA, and is a blatant example of how trade agreements privilege corporations ahead of public interests and workers’ rights.

Where do we go from here?

On the campaign trail in 2015, Justin Trudeau assured prospective voters, “the Liberal party fully respects labour unions and the work they do and is intending to work with them.” This stance, however, rests at odds with the party’s past and present support for trade agreements, which have been shown time and again to weaken labour rights and union participation.

Trudeau’s election campaign criticized the incumbent Conservative government’s secrecy around the TPP and promised to bring the public into the fold. But Trudeau hasn’t fulfilled his promise of transparent public consultation. In practice, says Sujata Dey, Council of Canadians trade campaigner, outreach has amounted to an email address on the Global Affairs Canada website and Freeland’s tour of the country, hosting mainly invite-only meetings with groups comprised of, as Dey notes, “the usual blue-chip industry reps, chamber of commerce boards, and lawyers and academics – not you or me.”

Minister Freeland signed the TPP in February 2016, and the House of Commons Standing Committee on International Trade has extended the deadline for public submissions about the TPP to January 27, 2017. How they proceed from this public input has yet to be seen, though during a highly publicized appearance in late October at the National Young Workers’ Summit – where, in protest, a number of attendees stood with their backs to Trudeau – the Prime Minister strongly indicated that his government plans to ratify the deal by the February 2018 deadline.

For the deal to go through, ratification is required from countries making up at least 85 per cent of the 12 partners’ combined gross domestic product. If the United States withdraws, as incoming president Donald Trump has promised to do upon taking office, the TPP, at least in its current iteration, will collapse.

With no guarantees, however, activists and organizations (including the Council of Canadians and the Canadian Labour Congress) continue their work to galvanize people around resistance campaigns.

Alongside anti-TPP activism, migrants’ rights advocates like the Migrant Workers Alliance for Change urge that dissent against the agreement and its provisions on migratory labour must be coupled with a larger conversation about how the current system already empowers employers over workers, and the deleterious effects this has both in Canada and abroad.

In an effort to challenge unfair migration policies, the Coalition for Migrant Worker Rights Canada – a partnership between nine migrants’ rights activist groups from across the country – launched the MoVE (Mobility, Voice and Equality) campaign to inform government about the need to end tied work permits, change labour impact assessments, and for low-waged migrant workers to gain access to permanent status upon arrival.

With the trade agreement on the brink of ratification, migrant workers are facing increasingly muscular business privileges and ever more anemic labour rights. Ultimately, activism against the TPP and advocacy for fairer migration practices both call for the same thing: policies that work to benefit people, not simply to accumulate corporate profit.

Lynette Fischer is a PhD candidate in social anthropology at York University, as well as a member of the Global Labour Research Centre. Her interests intersect at labour and its rights, and citizenship and its exclusions.